In the media

States and territories agree to crack down on parole laws after Brighton siege
Criminals who support or have links to terrorism may find it harder to get bail or parole, after state and territory governments commit to tougher laws (09 June 2017).  More...

COAG must prioritise risk assessment tools used for parole and bail
The Law Council of Australia today called on COAG to give high priority to developing superior risk assessment tools, not only in relation to those convicted of terrorist offences but for violent offenders who may have a propensity for extremist views or terrorism activity (09 June 2017).  More...

New approach to help keep children and families safe from family violence
A new approach that combines specialist legal assistance and social support is now available for families affected by family violence who are involved in family law proceedings. Launched on Tuesday 6 June the new Family Advocacy and Support Services place lawyers and specialist family violence support workers in both of the state's daily family law courts, Melbourne and Dandenong (06 June 2017).  More...

Turnbull Government accepts all Commonwealth recommendations of Lindt Café siege inquest report
The Turnbull Government will accept all Commonwealth related recommendations of the Lindt Café siege inquest report. This includes supporting work to strengthen information sharing in relation to criminal history, including bail and parole, and further consulting with states and territories on ADF call out powers (06 June 2017).  More...

Latest London attack puts Australia's military call out powers back in the spotlight Analysis
Using troops to respond to a terrorism attack in Australia would be a last resort, but one which is back in the spotlight following the latest attack in London and the coroner's findings on the Lindt cafe siege (05 June 2017).  More...

National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 [CTH]
On 31 May 2017, the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (The Bill) was introduced into the Commonwealth House of Representatives. The Bill establishes an independent national Commission, to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services under the National Disability Insurance Scheme (NDIS) (05 June 2017).  More...

Statement from Attorney-General Yvette D'Ath on Whiskey Au Go Go Inquest
The Attorney-General Yvette D'Ath has been awaiting the outcome of recent court proceedings, and will now write to the State Coroner instructing him to hold an inquest into the Whiskey Au Go Go case (02 June 2017).  More...

Whiskey Au Go Go fire: AG orders inquest into 1973 night club firebombing
Queensland's Attorney-General has written to the state coroner asking him to hold an inquest into the 1973 firebombing of Brisbane's Whiskey Au Go Go, in which 15 people died (02 June 2017).  More...

General Data Protection Regulation guidance for Australian businesses
The OAIC has published new guidance for Australian businesses on the European Union’s General Data Protection Regulation (GDPR) requirements. In the lead-up to the commencement of the GDPR requirements, businesses should confirm whether they are covered by the GDPR, and if so, take steps to implement any necessary changes to ensure compliance (31 May 2017).  More...

New Domestic and Family Violence laws now in effect
Attorney-General and Minister for Justice Yvette D’Ath said some amendments to the Domestic and Family Violence Protection Act 2012, which were made following the Not Now, Not Ever report, included more tailored domestic violence orders that provided better protection for victims and held perpetrators to account (31 May 2017).  More...

Introducing the APS Privacy Code
As part of an address to the AGS FOI and Privacy Forum on 19 May, Commissioner Pilgrim outlined the reasons and aspirations behind the introduction of the APS Privacy Code (26 May 2017).  More...

Australian Copyright Council Chair Kate Haddock weighs in on the Wikipedia Fair Use campaign
Copyright laws do not restrict access to knowledge in Australia. There is simply no evidence to show that people in this country have any difficulty accessing copyright material or the information it contains, because of our copyright laws. The only reason that Wikipedia and the other major corporations behind Mr Martin’s sources want fair use in Australia is to improve their own, already substantial, bottom lines (25 May 2017).  More...

In practice and courts

AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions:
Issue No. 23/2017, 5 June 2017
Issue No. 22/2017, 29 May 2017

OAIC: The Cosmetic Institute reported data breach
My office has contacted The Cosmetic Institute about this reported data breach. The Privacy Act 1988 recognises the sensitive nature of health information and provides extra protections around it in recognition of the significant impact any misuse of that information can have on an individual (06 June 2017).  More...

OAIC: Notifiable Data Breaches draft resources
Draft resources on the Notifiable Data Breaches (NDB) scheme have been published to assist organisations in understanding their compliance obligations from 22 February 2018. The OAIC is still in the process of developing resources about a number of other topics relating to the NDB scheme. These will be published on our website. Any comments on the draft resources are open until 14 July 2017.

OAIC: Privacy business resource 21: Australian businesses and the EU General Data Protection Regulation
From 25 May 2018 Australian businesses of any size may need to comply with the GDPR if they have an establishment in the European Union (EU), if they offer goods and services in the EU, or if they monitor the behaviours of individuals in the EU. The GDPR includes requirements that resemble those in the Privacy Act 1988, and additional measures that similarly aim to foster transparent information handling practices and business accountability around data handling.  More...

OAIC: Data + Privacy Asia Pacific Conference 2017
Privacy and data protection regulators from across the Asia Pacific region will join Australian industry leaders and data experts for the Data + Privacy Asia Pacific Conference in Sydney on 12 July this year.  More...

AHRC: OPCAT submissions
The Human Rights Commissioner has released a consultation paper and a call for submissions on Australia’s implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The Federal Government intends to ratify OPCAT by December 2017. Parties wishing to respond to the OPCAT consultation paper should do so by 21 July 2017.  

ANAO: Performance audit in-progress
Due to table: July 2017, the audit objective is to assess the effectiveness and efficiency of entities’ implementation of the Freedom of Information Act 1982.  More...

COAG meeting Communiqué, 9 June 2017
The Council of Australian Governments (COAG) held its 44th meeting today, in Hobart. Leaders welcomed Premiers Berejiklian and McGowan to their first meeting. Leaders agreed to further strengthen collaboration to prevent and respond to terrorism and other threats to public safety, underpinned by strong justice and national security systems.  More...

AIJA Court Media Officers’ Conference
The Conference will be held Thursday 31 August and Friday 1 September 2017 in Sydney.  More...

Commonwealth Consultations
October 2017 - Closing date for comments to the FCA on the General Practice Notes.  More...

Queensland

OAIC Queensland: Amendments to the RTI Act and IP Act
Recent amendments to the Right to Information Act 2009 (RTI Act) and Information Privacy Act 2009 (IP Act) will mean some changes in the way agencies process their applications. Many of these changes were minor, but some will impact on the processing of applications and the writing of decision letters (06 June 0217).  More...

QLS: Amended DV legislation in effect
The amendments contained in the Domestic and Family Violence Protection and Other Legislation Amendment Act 2016, excepting those which implement the scheme for national recognition of domestic violence orders, commenced on 30 May 2017. A summary of these amendments is available online.  More...

CCC Corruption prevention advisory: Disposal of assets
This advice highlights the risks and offences relating to disposal of assets within a public authority. It covers risk factors, corruption offences, strategies to prevent corruption (07 June 2017).  More...

CCC will not investigate proposed inflation of One Nation electoral expenses
Mr Ashby is not the holder of an appointment in any Queensland public sector agency and Pauline Hanson’s One Nation is not a public sector agency as defined in the Crime and Corruption Act 2001 (02 June 2017).  More...

CCC to hold further hearings relating to Operation Belcarra
The hearings are scheduled to be held at the CCC from 13-15 June 2017. An updated witness list and information about Operation Belcarra is available on the CCC’s website at www.ccc.qld.gov.au/operationbelcarra (31 May 2017).  More...

Magistrates Courts Practice Direction 6 of 2017
Engaging interpreters for domestic and family violence civil proceedings in the Magistrates Court.  More...

Published – articles, papers, reports

Disability support services: services provided under the national disability agreement 2015–16
Australian Institute of Health and Welfare: 05 June 2017.  More...

Government advertising (Report 16: 2016–17)
QAO: 31 May 2017
As advertising has the potential to influence people and impact on public opinion, public sector entities must use their advertising and communication activities appropriately. The government can achieve this by applying robust review and approval processes and guidelines.  More...

Securing democracy in the digital age
Zoe Hawkins; Australian Strategic Policy Institute: 29 May 2017
The report places this case study in its historical context and outlines emerging approaches to this new normal of election interference before identifying associated policy considerations for democracies.  More...

Reforms are urgently needed to the native title scheme
Dr Bryan Keon-Cohen, AM, QC, The age, 01 June 2017
The High Court's Mabo decision, 25 years ago on Saturday, triggered widespread celebrations and fresh hope among Indigenous Australians and their supporters, and exaggerated, even vitriolic outrage from some politicians, business leaders, journalists and academics.  More...

Who decides the Validity of Executive Action? No-Invalidity Clauses and the Separation of Powers
Lisa Burton Crawford; Australian Journal of Administrative Law, Volume 24, Part 2, June 2017
Australian Journal of Administrative Law update: Vol 24 Pt 2 [subscription access]

Cases

Wotton v State of Queensland (No 8) [2017] FCA 639
PRACTICE AND PROCEDURE – representative proceeding – racial discrimination – group comprising Indigenous community on Palm Island – subgroup comprising persons affected by arrests, entries and searches by officers of Special Emergency Response Team – declaration of questions of law and fact common to the claims of the applicants and the group and subgroup members.  Australian Human Rights Commission Act 1986 (Cth), s 46PO; Federal Court of Australia Act 1976 (Cth), ss 33Z, 33ZB; Racial Discrimination Act 1975 (Cth), s 9; Public Safety Preservation Act 1986 (Qld).  

El Ossman v Minister for Immigration and Border Protection [2017] FCA 636
ADMINISTRATIVE LAW – application for writ of certiorari – adverse security assessment issued by Director-General of Security – whether the applicant was denied procedural fairness in the making of the adverse security assessment – non-disclosure of information adverse to applicant subject, some but not all of which was subject to public interest immunity claim.
STATUTORY INTERPRETATION – whether the Director-General of Security’s determination under s 37 of the Australian Security Intelligence Organisation Act 1979 (Cth) is binding.
Australian Security Intelligence Organisation Act 1979 (Cth), ss 4, 7(1), 8, 17(1), 35, 36(1), 37, 38, 54, 84(1). Federal Court of Australia Act 1976 (Cth), ss 17, 37AG(1)(b), Part VAA.  Migration Act 1958 (Cth), s 501.
THE COURT ORDERS THAT: Order absolute in the first instance for a writ of certiorari directed to the Second Respondent setting aside the adverse security assessment in respect of the Applicant made by the Australian Security Intelligence Organisation.  

'LM' and Australian Taxation Office (Freedom of information) [2017] AICmr 49
Freedom of Information — Whether disclosure would disclose the existence or identity of a confidential source of information — (CTH) Freedom of Information Act 1982 s 37(1)(b). 

Australian Taxation Office and Andrew Garrett (Freedom of information) [2017] AICmr 50
Freedom of Information — Vexatious applicant declaration — Whether person should be declared a vexatious applicant — Whether person has repeatedly engaged in access actions that involve an abuse of process — Whether the access actions unreasonably interfere with the operations of an agency — (CTH) Freedom of Information Act 1982 ss 89K, 89L, 89M — (CTH) Acts Interpretation Act 1901 s 33. 

'LO' and Australian Securities and Investments Commission (Freedom of information) [2017] AICmr 52
Freedom of Information — Whether disclosure would prejudice lawful investigative methods or procedures — Whether material obtained in confidence — Whether documents contain deliberative matter prepared for a deliberative purpose — Whether disclosure would have a substantial adverse effect on the proper and efficient conduct of the operations of an agency — Whether disclosure of personal information unreasonable — Whether contrary to the public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982, ss 11A(5), 37(2)(b), 45, 47C, 47E(d) and 47F. 

'LN' and Department of Human Services (Freedom of information) [2017] AICmr 51
Freedom of Information — Whether reasonable steps taken to locate documents — (CTH) Freedom of Information Act 1982 s 24A.  

Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93
ADMINISTRATIVE LAW – judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Minister’s decision not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the respondent’s visa – whether the primary judge erred in finding jurisdictional error on the part of the Minister – where the Minister stated he was mindful of the “principle” that persons who commit serious crimes “should expect to forfeit the privilege of remaining in Australia” – whether no evidence that the respondent continued to traffick drugs following his cessation of their use – whether the respondent’s “correct criminal record” a mandatory relevant consideration – whether the primary judge erred in admitting into evidence affidavits, which were not before the Minister, denying that the respondent continued to traffick drugs following his cessation of their use – whether possibility that “correct criminal record” may have affected the Minister’s decision – whether denial of procedural fairness where respondent was told that either a delegate or the Minister would make the decision but not later told it was to be the Minister.
MIGRATION – appeal – orders of primary judge allowing an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Minister’s decision not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the respondent’s visa – whether the primary judge erred in finding jurisdictional error on the part of the Minister – where the Minister stated he was mindful of the “principle” that persons who commit serious crimes “should expect to forfeit the privilege of remaining in Australia” – whether no evidence that the respondent continued to traffick drugs following his cessation of their use – whether the respondent’s “correct criminal record” a mandatory relevant consideration – whether the primary judge erred in admitting into evidence affidavits which were not before the Minister denying that the respondent continued to traffick drugs following his cessation of their use – whether possibility that “correct criminal record” may have affected the Minister’s decision– whether denial of procedural fairness where the respondent was told that either a delegate or the Minister would make the decision but not later told it was to be the Minister.  Migration Act 1958 (Cth) ss 501, 501(3A), 501CA(4). 

Luck v Chief Executive Officer of Centrelink [2017] FCAFC 92
ADMINISTRATIVE LAW – decision made by reference to departmental handbook – whether decision made “under an enactment” within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether decision made under an Act – whether decision made under an instrument.
BANKRUPTCY AND INSOLVENCY – where sequestration order made – whether proceeding stayed by force of s 60(2) of the Bankruptcy Act 1966 (Cth) – whether exception in s 60(4) applies – whether application for judicial review commenced before bankruptcy is an action in respect of personal wrong.
PRACTICE AND PROCEDURE – whether decision upholding objection to competency interlocutory – whether leave to appeal required.
PRACTICE AND PROCEDURE – leave to appeal – where primary judge refused application for recusal – whether decision attended by sufficient doubt to warrant its reconsideration on appeal.
PRACTICE AND PROCEDURE – leave to appeal – where adjournment sought pending outcome of removal application under s 40 of the Judiciary Act 1903 (Cth) – where primary judge refused to grant adjournment – whether decision attended by sufficient doubt to warrant its reconsideration on appeal. 

Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86
CONSTITUTIONAL LAW – originating application for judicial review of a report provided to the Minister of Employment – redacted copy of report tabled in Parliament – whether conduct of the author of the report and the Minister constituted “acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House [of the Australian Parliament]” within s 16(2) of the Parliamentary Privileges Act 1987 (Cth) – whether the report was prepared “for purposes of or incidental to the transacting of any [business of a House of the Australian Parliament]” within s 16(2)(c) of that Act.
PRACTICE AND PROCEDURE – appeal from orders of primary judge striking out statement of claim and entering summary judgment for the respondents – originating application for judicial review of a report provided to the Minister of Employment – redacted copy of report tabled in Parliament – whether conduct of the author of the report and the Minister constituted “acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House [of the Australian Parliament]” within s 16(2) of the Parliamentary Privileges Act 1987 (Cth) – whether the report was prepared “for purposes of or incidental to the transacting of any [business of a House of the Australian Parliament]” within s 16(2)(c) of that Act. 

Knight v Workers' Compensation Regulator [2017] QSC 099
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – IMPROPER PURPOSES – where the applicant seeks review of two decisions of the Medical Assessment Tribunal relating to medical injuries sustained in the workplace through exposure to the chemical ‘D4’ – where the first decision of 24 March 2016 was set aside by consent – where the second decision of 4 October 2016 remains extant – where the second decision found the applicant had suffered no permanent impairment as a consequence of exposure to ‘D4’ – where the applicant claims the decision in question was infected by an improper exercise of power, error or law, or is otherwise contrary to law – whether the applicant can establish any basis for a successful review of the relevant decision in accordance with the provisions of the Judicial Review Act 1991. 

Hollis v Comcare [2017] FCA 558
ADMINISTRATIVE LAW — appeal from decision of Administrative Appeals Tribunal — parties in agreement that Tribunal erred in law in one respect requiring remittal of matter to Tribunal for rehearing — dispute as to terms of remittal and constitution of Tribunal — whether remittal should be limited to deciding the point underlying the ground of appeal raising the admitted error or whether it should be unlimited in its scope — whether remittal should be to the same Tribunal or whether the Tribunal should be reconstituted.  Administrative Appeals Tribunal Act 1975 (Cth), ss 19A, 44.  Federal Court of Australia Act 1976 (Cth), s 37M.  Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14, 16. 

Stuart v Queensland Building and Construction Commission [2017] QCA 115
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – GENERALLY – where the applicant seeks leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal dismissing an application for costs – where ss 149 and 150 of the Queensland Civil and Administrative Tribunal Act 2009 allow appeals against the “final decision” of the Tribunal – whether an order as to costs is a “final decision”. 

Mortimer v West (in his role as Deputy State Coroner) (Refusal to re-open investigation) [2017] VSC 293
ADMINISTRATIVE LAW — Plaintiff’s appeal of Coroner’s decision to refuse to re-open the investigation — Whether the Coroner made any error of law — Whether it is necessary or desirable in the interests of justice to allow the appeal — Test for ‘new facts and circumstances’ in s 77(3)(a) — Meaning of ‘appropriate’ in s 77(3)(b) — Appeal dismissed — Hecht v Coroners Court of Victoria [2016] VSC 635 — Coroners Act 2008 (Vic), ss 84, 87, 87A. 

Legislation

Commonwealth

Foreign Evidence (Certificate to Adduce Foreign Government Material - Prescribed Form) 2015
05/06/2017 - This instrument prescribes the form for the certificate to be given under subsection 27B(3) of the Foreign Evidence Act 1994

Enhancing Online Safety (Intimate Images and Other Measures) Legislative Rules 2017
30/05/2017 - These Rules confer an additional function on the Children’s eSafety Commissioner to improve the online safety of Australians at risk of having intimate images of themselves shared without their consent and develop a seniors’ digital learning portal and outreach program to increase the digital literacy and online safety skills of older Australians. 

Terrorism Insurance Act 2003 – Risk Retention Direction 2017
30/05/2017 – This direction increases the maximum retention levels for individual reinsureds to $12.5 million, and increases the maximum industry retention to $150 million on 1 July 2017, and to $200 million on 1 July 2018. The direction repeals the Treasurer to Australian Reinsurance Pool Corporation (Risk Retention) Direction 2003 and Treasurer to Australian Reinsurance Pool Corporation (Risk Retention) Direction 2007. 

National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017
31/05/2017 - The Bill addresses many of the issues raised in these inquiries for the NDIS.  For people with disability, their families and carers, the Bill contains national obligations and standards which apply to all NDIS providers and workers, including through an NDIS Code of Conduct and arrangements for reporting and complaints with appropriate protections and sanctions.

Social Services Legislation Amendment (Relieving Domestic Violence Victims of Debt) Bill 2017
29/06/2017 - This bill inserts provisions into the A New Tax System (Family Assistance) (Administration Act) 1999 and the Social Security Act 1991 to allow social security and family assistance debts to be waived in cases of domestic or family violence.  

Queensland

Bills Updated

Police Powers and Responsibilities (Commonwealth Games) Amendment Bill 2017
Introduced on 14/02/2017 Stage reached: Passed with amendment on 25/05/2017
Assent Date: 5/06/2017 Act No: Act No. 19 of 2017 Commences: see Act for details.

Court and Civil Legislation Amendment Bill 2017
Introduced on 23/03/2017 Stage reached: Passed with amendment on 23/05/2017
Assent Date: 5/06/2017 Act No: Act No. 17 of 2017 Commences: see Act for details. 

 

Contacts:

Paul Venus, Partner
T: +61 7 3135 0613
E: paul.venus@holdingredlich.com

Stephen Burton, Partner
T: +61 7 3135 0604
E: stephen.burton@holdingredlich.com

Suzy Cairney, Partner
T: +61 7 3135 0684
E: suzy.cairney@holdingredlich.com

Trent Taylor, Partner
T: +61 7 3135 0668
E: trent.taylor@holdingredlich.com

Disclaimer

The information contained in this document has been compiled and supplied by LegalBiz. The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Follow us on Linkedin & Twitter

Holding Redlich Weekly Brief

To receive invitations to upcoming seminars and articles that may be of interest to you
please click here to subscribe to the Holding Redlich Weekly Brief.

Top

Holding Redlich © + Legal Notices + Site Map + Search + Contact Us +linkedin +twitter